Citation NR: 9619922
Decision Date: 07/17/96 Archive Date: 07/31/96
DOCKET NO. 94-47 412 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Hartford,
Connecticut
THE ISSUE
Entitlement to an earlier effective date for a total rating
for the veteran’s service connected post traumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: AMVETS
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Debbie A. Riffe, Associate Counsel
INTRODUCTION
The veteran had active service from October 1966 to July
1969. In February 1994, the Boston, Massachusetts Regional
Office (RO) granted service connection for PTSD and assigned
a 30 percent evaluation effective from April 1993. This
appeal arises from an April 1994 rating decision of the
Hartford, Connecticut RO, which established a total rating
for PTSD under 38 C.F.R. § 4.29, effective from October 1993.
The Board notes, however, that the statement of the case
issued in October 1994 indicates that the veteran disagreed
with the rating decision of February 1994.
In April 1995, the RO granted the veteran a total schedular
evaluation under Diagnostic Code 9411 for the veteran’s
service connected PTSD, effective from October 1993. The
case is now before the Board of Veterans’ Appeals (Board) for
appellate consideration on the issue of entitlement to an
earlier effective date for a total rating for the veteran’s
PTSD.
REMAND
The Department of Veterans Affairs (VA) has a duty to assist
the appellant in the development of facts pertaining to his
claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R.
§ 3.103(a) (1995). The U.S. Court of Veterans Appeals
(Court) has held that the duty to assist the appellant in
obtaining and developing available facts and evidence to
support his claim includes obtaining medical records to which
he has referred and obtaining adequate VA examinations. The
Court also stated that the Board must make a determination as
to the adequacy of the record. Littke v. Derwinski, 1
Vet.App. 90 (1990).
A VA outpatient treatment notation from the Brockton VAMC
dated June 9, 1993 indicates that the veteran met with a
“PTSD person” from the Jamaica Plain VA hospital and would
continue to meet on a weekly basis as a part of the
evaluation process for the veteran’s PTSD claim. An August
26, 1993 VA notation indicates that the Jamaica Plain VA
report of the assessment of the veteran’s PTSD was nearing
completion and would be forwarded to the Boston VA. In a
personal hearing in December 1994, the veteran testified that
he went to Jamaica Plain in Boston for four months. As these
records of the veteran’s PTSD evaluation are not part of the
record, they should be obtained by the RO.
The Board notes that in October 1994, the veteran submitted a
statement in which he requested a personal hearing at the
Hartford, Connecticut RO before the local hearing officer.
With this statement, the veteran submitted a substantive
appeal form on which the veteran indicated that he would
present his case at the personal hearing. On the appeal form
the veteran appeared to indicate that he also desired a
personal hearing before a member of the Board at the local VA
office. However, he also placed a mark in the “No” box for a
hearing before a Board Member. The veteran subsequently had
a personal hearing before a hearing officer at the RO in
December 1994. In view of the ambiguity over whether the
veteran still desired a hearing before a Member of the Board
at the RO, the veteran should be contacted to clarify his
hearing request.
In view of the above, it is apparent that further development
of the evidence is in order. Accordingly, the case is hereby
REMANDED for the following actions:
1. The RO should contact the Jamaica
Plain VAMC in Boston, Massachusetts and
request copies of all records of
treatment and evaluation relating to the
veteran in 1993. All records obtained
should be associated with the claims
folder.
2. The veteran should then be contacted
to clarify whether he still desired a
personal hearing before a traveling
Member of the Board of Veterans’ Appeals.
If so, then he should be placed on the
docket for a personal hearing before a
traveling Member of the Board.
3. Following completion of the
foregoing, the RO must review the claims
folder and ensure that the foregoing
development has been completed. If any
development is incomplete, appropriate
corrective action should be implemented.
Thereafter, the RO should readjudicate
the veteran’s claim and provide the
veteran and his representative with a
supplemental statement of the case. They
should be afforded the applicable time to
respond if the decision remains adverse
to the veteran.
Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration, if appropriate. The veteran need take no
action until he is further informed. No inference should be
drawn regarding the final disposition of the claim as a
result of this action.
C.W. SYMANSKI
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
- 2 -